What Employers Can Expect from the Trump Administration: Immigration

Ouralert Monday (11/14/16) provided a summary of employment-related changes that are likely under Donald Trump’s new administration, including a brief overview of immigration issues. This alert provides greater detail on the immigration policies that Candidate Trump supported and the changes that he is likely to enact or advocate for as President. President-elect Trump has already announced plans for the first 100 and 200 days of his presidency and released an immigration plan. The changes that the new administration seeks to enact can be broadly categorized according to how they could be accomplished: through legislative, regulatory, or executive action, which will impact the likelihood and pace of change.

Repealing DACA: Among the first steps that President Trump could take is eliminating the DACA (Deferred Action for Childhood Arrivals) program that President Barack Obama created through executive order in 2012. This program has provided work authorization to approximately 750,000 individuals who entered the United States as youths and met certain public safety and national security requirements. DACA was unaffected by the lawsuit over President Obama’s expansion of these programs in 2015 and 2016. As a presidential candidate, Trump stated that he would eliminate the DACA program, but it is unclear whether he would actually fulfill this promise or enact a more limited restriction on the DACA program. Because this program was enacted through executive order, President Trump will be able to eliminate or change it through executive order and that is likely to be one of the first actions he will take. The elimination of this program could impact the ability of employers to employ individuals with DACA-based work authorization.

Notwithstanding the possibility of change to this program, it is critical that employers avoid making any adverse employment decisions about an employee or prospective hire based only upon the potential elimination of the DACA program. Under current federal law, such actions could be considered unlawful and could expose the employer to legal liability.

E-Verify: During his campaign, Trump emphasized mandatory E-Verify as a solution to the problem of illegal immigration and employment of unauthorized workers by U.S. employers. E-Verify is currently a voluntary program and prior legislative attempts to make it mandatory have been unsuccessful. President Trump would need to work with Congress to enact mandatory E-Verify.

Workplace Enforcement and Raids: Candidate Trump promised an increased emphasis on workplace enforcement and I-9 audits, as well as a likely return to the practice of detaining unauthorized workers caught in raids. Under the Obama administration, workplace enforcement, due to limited resources, focused on “critical infrastructure” and ended the practice of detaining alleged unauthorized workers unless those individuals had a criminal record or were otherwise a removal priority. Employers should prepare for increased workplace enforcement under the Trump administration and the possibility of “SWAT-style” raids. Such changes would reflect new administrative policy and would not require legislative action.

TN visa: The TN visa category was established under NAFTA and permits certain Canadian and Mexican professionals to live and work in the United States on a temporary basis. Candidate Trump was fiercely critical of NAFTA and his 200 day plan calls for significant changes to the treaty. These changes could result in U.S. withdrawal from the treaty and renegotiation of bilateral treaties with Canada and Mexico, which could have a significant impact on the TN visa category.

Business Visa Changes: Many changes to the H-1B visa program would require legislation. For example, the annual cap of 85,000 H-1B visas (including 20,000 visas for U.S. advanced or Master’s Degree holders) is fixed in the Immigration and Nationality Act, as is the process for obtaining an H-1B visa. However, changes to the prevailing wage guidelines that control the wages paid to visa holders could be enacted through Department of Labor regulation. As a candidate, Trump promised to increase prevailing wages..

Additionally, over the last 2 years, the Obama administration enacted modest and limited reforms to business immigration. These reforms have included changes to the Visa Bulletin, employment authorization for certain H-4s, the new 2-year STEM OPT program, and a proposed parole program for start-up entrepreneurs. While Candidate Trump did not focus on these changes, some of his associates have been vocal critics of these reforms and their future is therefore uncertain. Because many of these changes were enacted through agency rulemaking, changes would take some time due to the notice and comment requirements associated with enacting new federal regulations.

Extreme vetting of certain immigrants: Candidate Trump initially stated that he would block Muslims from entering the United States. His position later evolved to “extreme vetting” of immigrants from certain countries. Such vetting could be implemented in a variety of different ways, including but not limited to registration requirements (similar to the NSEERS program that the George W. Bush administration adopted) and increased background checks. These changes could be enacted through a combination of regulatory and legislative changes.

Border Security and Undocumented Immigrants: Candidate Trump focused his most extreme rhetoric on undocumented immigrants and border security, promising to build a wall on the border with Mexico and to “make” Mexico pay for it. In the 100-day action plan he released after his election titled “Contract with the American Voter,” President-elect Trump promises to enact punitive measures such as defunding sanctuary cities and discontinuing visa issuance in response to countries’ refusal to accept U.S. deportees. The plan also includes the “End Illegal Immigration Act,” which includes funding and plans for construction of the border wall; creation of mandatory federal prison sentences for those who unlawfully re-enter the U.S. after deportation, felony convictions, or multiple misdemeanor convictions; and increased penalties for visa overstays. The stated intention of the Act is to protect job opportunities for U.S. workers. Although information is limited at this time, Trump’s transition team has announced the detention and deportation of unlawfully present individuals with criminal convictions as an immediate priority.

What to Expect Next: The President’s ability to impact immigration policy will be more quickly and sharply felt where he can use executive authority, including changes in personnel and the policies of immigration agencies, prioritization of enforcement efforts, and use of executive actions. He will likewise have the ability to deny immigration benefits not codified in laws. Regulatory changes will take more time. And legislation will be required to change treaties that provide immigration benefits and to fund his border security projects. In light of strong partisanship and opposition to President-elect Trump’s proposed immigration policies, it is also very likely that they will face litigation seeking to block their enactment. As with many other areas of the President-elect’s agenda, employers and individuals will need to remain alert to see what immigration changes the new administration actually pursues.